On April 16, 2015, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the Middleton-Cross Plains Area School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2014-15 school year, properly included in the student’s individualized education program (IEP) a statement that the student has been informed of the rights that will transfer to the student when the student turns 18, and in April 2015, properly responded to a parent’s request for access to education records.
When a student with a disability reaches the age of 18, all rights afforded to the parents under special education law transfer to the student unless the student is determined to be incompetent. Beginning not later than one year before the student reaches the age of 18, the IEP must include a statement that the student has been informed of the parent rights under special education law that will transfer to the student upon reaching the age of majority.
The student turned 18 on April 25, 2015. The student’s IEP developed on April 22, 2013, contained the statement that both the student and his parents were informed of the rights that will transfer, and that they received this information through a booklet about the rights and responsibilities of being 18. This statement was also included in the 2014 and the 2015 IEPs. The booklet is entitled “What you should know about Wisconsin Law, Your Legal Rights and Responsibilities.” This document, however, does not provide information of rights afforded to parents under special education law that will transfer to the student when he or she reaches the age of 18. The school district did not properly inform the student of the rights that will transfer when the student reaches 18. Within 30 days from the date of this decision, the district must develop a corrective action plan to ensure that a student is properly notified of the rights that will transfer when he or she reaches the age of 18. Within 30 days from the date of this decision, the district must also ensure that the student who is the subject of this complaint receives this information.
On April 6, 2015, the parents made a request to the district for all of the student’s education records. In responding to the request, the district did not provide any emails not included in the student’s cumulative file or any personal notes. A district must permit parents, on request, to inspect and review their child's education records. An “education record” is defined as “those records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution.” An “education record” does not include records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record. The word “maintains” refers to the ordinary definition as to preserve or retain. Emails not included in the student’s file are not considered education records because they are not “maintained” as contemplated by Congress. Emails may appear in multiple in-boxes of many individuals within the school and the school district. See S.A. v. Tulane Cty. Office of Educ., 53 IDELR 143 (E.D. Cal. 2009), where the court stated, “Congress contemplated that education records would be kept in one place with a single record of access.” The district properly responded to the parent’s pupil record request.
All noncompliance items identified above must be corrected as soon as possible, but in no case more than one year from the date of this decision. This concludes our review of this complaint.
//signed CST 6/15/2015
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support